Limited, inclusive, and communitarian: in defence of recognising property in the human body

Abstract

While recognising property in the human body would have its uses, there are objections to granting such rights given the unique nature of the body. One objection is that property serves individualistic and not communitarian values and fails to capture the body’s relational interdependent nature. I contest this objection as it takes an overly narrow view of property as being ‘Blackstonian’ in character, eliding the diversity of property institutions that actually exist. Thus, the usefulness of property law in the protection and management of community resources and the manner in which property is often limited by non-property interests that the law is accustomed to protecting have not been accounted for. I contend that property facilitates cooperative human activity and could potentially provide useful tools for the protection of individual and communal rights in the body. I further contend that, where property rights have tentatively been recognised in human biomaterials, they are not strongly exclusive in character and are consistent with property’s inclusive and communitarian nature in being limited to prevent public harm and by reference tothe non-property interests of other persons and the community.